Merit Decision: The Court Opens the Door to Adjacent, Non-Resident Property Owners to Challenge Zoning in a Neighboring Municipality. Moore v. Middleton.

Wow! No wonder this one took so long. On August 30, 2012, the Supreme Court of Ohio handed down a merit decision in Moore v. Middleton, 2012-Ohio-3897. It’s a biggie, so expect a long post. As I’ve written previously on the blog, this case was argued the same day as Clifton v. Blanchester, in which the Court held on March 12, 2012 that a property owner lacks standing to bring a regulatory-taking claim against a municipality when the affected property is outside the municipality’s corporate limits.

At first blush, and to the dissenters, this case seems the same as the Clifton case.  The plaintiffs in the Moore case owned property in Monroe that bordered a parcel of land in Middletown known as the Martin-Blake property.  That 157 acre tract was zoned as low-density residential. Middletown re-zoned the Martin- Blake property to a general industrial classification and eliminated set-back requirements that were “incidental or ancillary” to the manufacturing process, in order to allow a coke plant to be built on the site.  According to the Moores, this zone change wasn’t for the benefit of the public, but only to make one of Middletown’s largest employers, the AK Steel Corporation, happy. So the Moores brought  a declaratory judgment action, seeking a declaration that the ordinances involved were arbitrary, capricious, and unconstitutional, in violation of the Due Process and Equal Protection Clauses of the U.S. Constitution and Article I, Section 16 of the Ohio Constitution.  The Moores also sought a writ of mandamus seeking compensation for what they argued was clearly a taking of their property. They lost at both the trial and appellate levels.

As I wrote earlier on the blog, the justices seemed far more sympathetic to the homeowners in the Moore case than to the farmer in the Clifton case.  But I wondered how the Court was going to get around its own syllabus in the Clifton case since the standing issue seemed the same in both cases. Here’s how Chief Justice O’Connor, author of the 4-3 decision in Moore saw it:

“We will not limit property owners’ standing to raise constitutional claims simply because our law prevents them from raising a takings claim…”

The 4-3 decision in Moore  produced a very unusual split—the Chief, and Justices McGee Brown, Pfeifer and Cupp for the majority, and Justices Lanzinger, Stratton, and O’Donnell concurring in part and dissenting in part.

Ok, let’s back up and analyze the merit decision in the Moore case. One part of the decision was unanimous.  All seven justices agreed that the Moores had no standing to bring a takings claim. The Court had to find this in light of the syllabus in the Clifton case, which was strongly reaffirmed in Moore.  But then the Chief, for the majority, took this case to a whole other level. The majority held that while the Moores did not have standing for a takings claim, they did have standing to bring a declaratory judgment action to challenge the constitutionality of the ordinances.


The Court re-iterated that these are the big three of standing: injury, causation, and redressability.  It also re-iterated the first principle of standing—that a litigant has a right to have the court decide his or her case.

Standing Specific to Regulatory Takings

When a property owner is trying to make a regulatory takings claim on the basis of the government’s challenged regulation of someone else’s property, standing is substantially more difficult to establish. If you throw on top of that living outside the municipality that did the zoning, you’ve hit a brick wall because under Ohio law a municipality has no authority to appropriate  property outside its jurisdictional limits. So the Moore’s mandamus claim failed on the authority of the Clifton case.

But as I noted in my post following the release of the decision in Clifton,  the Court used this cautionary language in Clifton:

“However, we emphasize that we do not hold that an adjoining property owner may never have standing. Instead, we hold that a property owner lacks standing under the facts andcircumstances presented here.”

“Explaining” Clifton?

The Court strongly reaffirmed the syllabus in Clifton on lack of standing for a takings claim.  But in ¶ 30 of the Moore opinion, the Court appeared to backpeddle, noting that “despite the breadth of wording in Clifton’s syllabus” the Court hadn’t held that a property owner “always lacks standing to bring a mandamus claim against a municipality when the affected property is outside the municipality’s corporate limits.” Honestly, I got lost here. I thought the Court had indeed held exactly that.  Rather, the majority explained, Clifton must be understood “in conjunction with the unique facts and circumstances upon which it rests.” Moving right along,  the Court agreed that the property owners in Moore lacked standing to compel Middletown to appropriate their property. But the majority used this as a jumping off point, finding that “the court of appeals was far too expansive in holding that Clifton controlled all of the property owners’ claims.  It does not.”

So, File a Declaratory Judgment Action and Raise the Constitutional Claims

The majority found that the Moores, as adjacent property owners, had standing to challenge the re-zoning of the Martin-Blake property on constitutional grounds, to try and prove the re-zoning violated their equal protection and due process rights, and was arbitrary and unreasonable, and not substantially related to the public health, safety, or general welfare.  They could do this by filing a declaratory judgment action. They may not succeed.  But the majority decision clearly gives them the right to try.

Here’s some really nice language from Chief Justice O’Connor, both on standing, and on property rights:

On Standing:

“…judges are cautioned to remember, standing is not a technical rule intended to keep aggrieved parties out of court.”

“…our cases make clear that we are generous in considering whether a party hasstanding.”

On Property Rights

“The rights to acquire, use, enjoy, and dispose of property are among the most revered in our nation’s law and traditions and are integral to our theory of democracy and notions of liberty,” quoting her own seminal decision in Norwood v. Horney.

“…our touchstone is respect for the revered constitutional principles that protect the people’s rights to acquire, enjoy, use, and dispose of property.”

 Cresskill v. Dumont

The Court approved and adopted, as have many states, an old New Jersey case, Cresskill v. Dumont, 15 N.J. 238, 104 A.2d 441 (1954). In that case, considered the seminal case on this subject, the New Jersey high court rejected the notion that “a  municipality’s responsibility for zoning halts at the municipal boundary line.”

The Grand Finale

“We decline to limit standing to residents of the municipality that zoned or rezoned the land. Walls do not separate our political subdivisions. We hold that property owners whose property is adjacent to property rezoned by a foreign municipality may use a declaratory-judgment action to challenge the constitutionality of the zoning action,” wrote Chief Justice O’Connor.

So, the Moores will at least get their day in court. It will be interesting to see what happens.

The Dissent

 Yes, We Agree There is no Standing To Bring A Takings Claim

Justice Lanzinger wrote the dissent, joined by Justices Stratton and O’Donnell.   Let me repeat–all three concurred with that part of the decision finding no standing to bring a mandamus action to compel an appropriation claim.  That part of the decision was unanimous.

Nor is a Declaratoy Judgment Action Proper

The dissenters, however, disagree that the Moores can use a declaratory judgment action to challenge the constitutionality of ordinances of an adjacent municipality. They think it is inconsistent to allow one but not the other. “No Ohio decision until today has granted nonresidents standing to challenge a municipality’s zoning laws,” Lanzinger wrote.

The dissenters made a number of points.  They don’t see how the Moores can have standing to challenge the ordinances by way of declaratory judgment when there has been no taking.  Since the Moores did not allege that the re-zoning and setback ordinances were directed at their property, they have no standing to challenge them.

“ The Moores do not reside in Middletown, pay no city taxes, do not vote in city elections, and are not subject to the city’s jurisdiction. I cannot see how they have asserted a redressable injury in order to claim a due process or equal protection violation. The ordinance is “applied to” property in which they have no interest,” Lanzinger wrote. She also disagreed that the Moores have standing to challenge the ordinances through a declaratory judgment action because they have failed to allege an injury that is different in kind or degree from that suffered by the general public.  It affects them in no unique way.

Cresskill doesn’t help

Finally, the dissenters disagree about the significance of the Cresskill case, finding that all it holds is that municipalities must give nonresidents adversely affected by zone changes the opportunity to be heard and to give their concerns due consideration.  The dissenters worry the Moore case is going to open the floodgates to challenges to zoning ordinances by non-residents.

The Chief’s Rebuttal

The Chief addressed the points in the dissent with a single succinct footnote, in which she wrote, “The dissent conflates the property owners’ claims for a taking with their claims that the government acted unconstitutionally and impermissibly unreasonably. It is unfairly reductionist to do so.”

Case Syllabus

Property owners whose property is adjacent to property rezoned by a foreign municipality may use a declaratory-judgment action to challenge the constitutionality of the zoning action if the owner pleads that he has suffered an injury caused by the rezoning that is likely to be redressed.

Concluding Observations

It was clear from the fact that the Moore case wasn’t released at the same time as the Clifton case that something was up, just as it was clear at oral argument that the Court was more sympathetic to the property owners in Moore than in Clifton.  I think this case played to one of Chief Justice O’Connor’s passions—private property ownership rights.  After all, she wrote the bellweather decision in Norwood v. Horney, in which a state court found greater protection under its state constitution for property owners in eminent domain proceedings than the U.S. Supreme Court found under the federal constitution in Kelo v. City of New LondonShe really wrote eloquently about private property rights in that case. So it’s no surprise that the Chief has gone out on a legal limb for property owners in the Moore decision.

I think the weakest part of the Moore majority decision was the attempt to “clarify” the  Clifton case.

In many ways, though, the real winner in this case—other than the Moores, of course, is Justice Pfeifer.  In the Clifton case he wrote a lone dissent in which he would have found standing even for affected non-resident property owners to bring takings claims.  While he didn’t win anyone over to that view—and of course followed the Court’s reaffirmance of the Clifton precedent in Moore—he also asked in Clifton “Ought not the law of Ohio provide a remedy for an aggrieved landowner even if he lives in a different political subdivision from the one whose zoning change diminishes the value of his property?” And he cited the Cresskill case in his dissent.  So it seems that he did move three other justices around to his philosophical point, after all.



This entry was posted in Merit Decisions, Ohio Supreme Court Watch and tagged , , , . Bookmark the permalink.

2 Responses to Merit Decision: The Court Opens the Door to Adjacent, Non-Resident Property Owners to Challenge Zoning in a Neighboring Municipality. Moore v. Middleton.

  1. Andy Engel says:

    In paragraph 67 of the dissent, Justice Lanzinger discusses what interest must be present to support standing. She emphasizes that a “legal interest” is needed, not just a practical interest. But the Moores had a legal interest they sought to protect, their property. The question seems to be, then, whether the interest at stake is afforded legal protection from the conduct complained of.

    She then states, “The issue of standing turns on the nature and source of the claim asserted by the plaintiffs.” And indeed, this is what the majority decision held – the Moores did not have standing to pursue a takings claim, but did have standing to pursue a declaratory judgment claim. Standing is not determined on a case basis, but rather on a claim basis. And standing under one claim does not vest the plaintiff with standing as to all claims. Although injury is the touchstone of standing, that injury must be appropriately related to both the interest being protected and the relief being sought.

    This linking of the injury to the interest claimed and claim asserted has not been much developed under Ohio law, although we see it in federal jurisprudence.

  2. Dan McCarthy says:

    The Court again used very strong language in support of private property owner rights. This is a positive development, especially in light of some recent cases. For example, the use of a strict statute of limitations in State ex rel. Nickoli v. Erie Metroparks, 2010-Ohio-606, is still very concerning.
    I also thought the Court did a good job explaining the differences between mandamus claims, substantive due process claims, and declaratory judgment claims. Property owners have different tools to use to challenge unconstitutional zoning provisions. Just because one way may not be available in a particular case, it does not necessarily preclude a property owner from pursuing a different cause of action.

Leave a Reply

Your email address will not be published. Required fields are marked *